Standard of Review Anyone?

It appears that many people think that an appellate court reviews each appeal in the same way a trial court does, e.g., by looking at the evidence – perhaps people think that witnesses come back and testify again. I do not claim to be an expert on the public’s general knowledge (and belief) regarding appellate courts. Disclaimer, I most likely did not understand appellate review prior to attending law school and there remain many things I still don’t know about appellate review and standards of review on appeal.

Standard of review matters, a lot. How much you ask? Well standard of review determines cases. As a recent post on Above the Law – a, mostly, funny legal blog – asserted in one of its few serious pieces:

After a relatively short time on an appellate bench, a judge’s brain becomes hard-wired to examine standards of review. For federal appellate judges, that means that, if the standard of review is de novo, the court should think hard about the trial court opinion and reverse if the result seems wrong. If the standard of review is for clear error, then the judge knows that the appellate court should probably affirm. If the standard of review is for abuse of discretion, then you don’t really have to bother reading the briefs. Just get out the “affirmed in an unpublished memorandum disposition” stamp, and move on to the next case.

Now, many of you likely will not know what the jargon-ey standards discussed above mean but suffice it to say: standard of review matters, and determines cases.

Just like every other piece I have seen on Dukes v. Wal-Mart, this New York Times piece, while interesting (especially where it suggests alternatives to a 1.5 million person class), completely fails to properly educate to the readers to the role of the appellate courts in the United States (and the Supreme Court in particular). Although it would be difficult to provide context in this short editorial, perhaps at some point someone in some news source could at least mention that class certification is subject to a certain kind of review – and it isn’t de novo but rather abuse of discretion. This means that the trial court has significant discretion in determining whether a prospective class is certifiable. The appeals court (Supreme Court included) does not get to displace the trial court’s determination with its own. My review of the comments suggests that the commenters are clearly are not aware of the standard of review and the significant impact it has.

This is significant in two ways regarding Dukes v. Wal-Mart:

1. It will be very difficult for Wal-Mart to win on appeal because of this significant burden on the appealing party.

2. It is unclear that if the Supreme Court upholds class certification for the plaintiffs in Dukes that this will materially change any law or set any precedent (I do recognize that this may be highly relevant for the plaintiffs and in plaintiffs’ lawyers). All that an affirmation will show is that these plaintiffs and these facts are not so outside the trial court’s discretion and that it was o.k. for it for certify this class. This does not mean that each and every time an employee sues his or her employer the employees of that employer are certifiable as a class (although affirming the trial court’s class certification likely means that the raw size of the plaintiff class is not de facto a reason to overturn certification).

Has anyone seen an article discussing the standard of review in Dukes v. Wal-Mart – or any other case?

Does anyone think that this case could have a more meaningful impact on existing law than I outline above?

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2 Responses

Jason, I agree with everything you are saying. You are nevertheless ignoring the other side of the equation. Namely, you are ignoring that this case would set a very strong precedent if Wal-Mart wins, meaning that large classes are pretty much never acceptable.

To me there are two indications that the Court would rule for Wal-Mart.

First, even though you are right that the Court ought to follow standards of review, my sense from reading their decisions is that they are much more flippant about such “niceties” than circuit courts. After all, it is not like anyone is there to overrule them. I would be first to admit I have no hard evidence so take it as you wish.

Second, if they planned to affirm they would not have taken the case at all. Circuit courts have to review all appeals. The Court does not. Leaving this case among thousands that they chose not to review would have meant: “abuse of discretion + affirmative decision -> no precedential value so no need to bother.” But they did take the case, meaning that at least four of them have other thoughts.

Completely agree that the supreme court’s reversal would be a significant change in the law. Insofar as commentators, etc. assert that this would be the only way that the law would change, that would be fine. But I get the sense that the commenters on the NYT (and other) news sources do not understand this in part because the news articles do not explain it.

The patent disregard for what an appeal is and is not is troubling in articles attempting to discuss this sort of appeal (as compared with appeals that are reviewed de novo, like affirmative action, where the supreme court basically gets to proclaim the law).